Tuesday, December 2, 2014

Book Review: The Five Types of Legal Argument by Wilson Huhn (3rd ed. 2014)

From Tom Bartee, our Branch Chief in Kansas City:Despite being aimed at law students, this short and simple
book is a good tool for practitioners. With time-consuming restraints (case loads, court hearings, clients), our written work might sometimes fall below what we would expect from a law student. Undoubtedly, we bypass a thorough analysis of a legal issue in favor of the first argument that
we recognize. This book can help us not to do that.

Huhn's legal philosophy favors pluralism and pragmatism over more rigid theories like
textualism or originalism. The book is not meant as a work of abstract
jurisprudence, though, and it’s real value is instrumental.

As advertised, the book identifies five categories of legal
argument: text, intent, precedent, tradition, and policy. Each category
reflects a different value: text = clarity and objectivity; intent =
popular sovereignty (public law) and personal autonomy (private law, e.g., wills, contracts); precedent = consistency and
stability; tradition = social cohesion; and policy = flexibility in the face of social change. The order of these categories
corresponds to the order in which they should be considered in a legal
argument, and the best argument should weave these into a "cable."

In a succinct discussion of each argument type, Huhn uses illustrations from well-known cases. The
section on text includes a helpful discussion of "intratextualism," a
la Akhil Amar, which involves (1) a statute's use of the same word in
different parts of the text, and (2) the structure of a statute. The discussion of intent was basic and
orthodox. The discussion of precedent was incomplete, failing to discuss the various ways to distinguish precedent from dicta,
or the difference between vertical and horizontal stare decisis (i.e., only a higher court can bind a lower court). The discussion of tradition
was more interesting, with both progressive and conservative examples of this type of argument.On policy, Huhn highlights the need to predict real-life consequences from different interpretations, as well as how those consequences would advance or impede the policies underlying the law at issue. Huhn provides an interesting account of the history of American legal
reasoning: 19th century formalism falling to 20th century legal realism. Sympathizing with the latter, Huhn supports consideration of "legislative facts" in
resolving policy issues. Yet, Huhn also recognizes an important
constraint on policy arguments: any underlying policy must be one that the law is actually intended to serve, and this linkage between
the law in question and the policy must be apparent from at least one of the other
types of legal argument.

But the heart of the book is an analysis of the various
types of attacks available for use against each category of argument. Readers
familiar with Edward Imwinkelried's The
Methods of Attacking Scientific
Evidence will note its similarity of organization with that of
Huhn's work. The various attacks are grouped into "intra-type" and
"cross-type" categories. For example, an intra-type attack on a
plain-meaning textual argument might be that the text is ambiguous or that the
text has a different plain meaning, whereas a cross-type attack might be that the
plain text controls over inconclusive evidence of the drafter’s intent.Because of its organization and succinctness, the book is a resource for practicing lawyers when structuring a legal argument or attacking someone else's argument. Huhn's
use of footnotes rather than endnotes helpfully allows the reader to review references without losing his train of thought. A book of this size is bound to
leave much out, but its incompleteness is outweighed by its handiness.